The opinion
On Application for Rehearing
CATES, Judge.
At appellant’s request we extend the opinion as to refused charges 10, 14 and 22; otherwise, Haynes v. State, 268 Ala. 546 , 109 So.2d 746 , might afford the Supreme Court a basis for not considering our opinion regarding these charges. Counsel also wants us to point out pertinent parts of the oral charge.
Haynes v. State, supra, has apparently not overruled Brown v. State, 249 Ala. 5 , 31 So.2d 681 (Gardner, C. J., and Livingston, J., dissenting), as to the Supreme Court’s looking at the trial court’s oral charge when the Court of Appeals refers to it as obviating the need for a particular requested instruction. Brown (on this point) has been approvingly cited in Redwine v. State, 258 Ala. 196 , 61 So.2d 724 ; Barber Pure Milk Co. v. Young, 263 Ala. 100 , 81 So.2d 328 ; Southern Ry. Co. v. Terry, 268 Ala. 510 , 109 So.2d 919 ; and Petty v. State, 269 Ala. 48 , 110 So.2d 325 .
Moreover, the Legislature has adjured us not “to write opinions in cases [which] * * * merely reaffirm previous decisions * * * or when the cases * * * would * * * serve no useful purpose as precedents.” Code 1940, T. 13, § 66. Blackwood v. Maryland Cas. Co., 227 Ala. 343 , 150 So. 180 (on mandamus). We see no harm to appellant nor need of our quoting herein from the oral charge.
*329 Charge 10 (refused) brings out only one phase of law not covered by charge 4 (given) : the right of a self-defendant aware of threats “to take more prompt and decisive steps” when assaulted by one of violent repute. Gratis dictum in Bone v. State, 8 Ala.App. 59 , 62 So. 455 , is the only support we find. Jones, Ala. Jury Instr., § 7554. In Roberts v. State, 68 Ala. 156 (where the question was on admission of evidence), the legal principle is given with a standard of comparing “more prompt and decisive steps” with those needed to repel an assailant of “opposite character.” Refused charge 10 leaves this thought only as a matter of unclear implication. PRICE, J., and the writer consider this to be “ellipsis” and hence capable of misleading the jury.
HARWOOD, P. J.,
thinks that this aspect of charge 10 is not elliptical because the standard of comparison is supplied by an understandable implication. He thinks the refusal of charge 10 was not error because charge 4 (given) fairly and .substantially sets out the instant legal principle referred to in the Roberts opinion.
The entire court considers charge 10 faulty in that all that precedes “if you believe from the evidence” is left in the abstract. The right to repel whether quickly or slowly is defensive only, and a finding that the defendant was free from fault and in peril (she unquestionably being in her own home) was necessary. The charge leaves this finding out. See Anderson, J., in Beasley v. State, 181 Ala. 28 , 61 So. 259 .
Charge 14 (refused) was not only more correctly covered by the oral charge, but was also misleading because it used the incomplete phrase “and in connection.”
Charge 22 (refused) held good in McAdory v. State, 62 Ala. 154 , Jones, supra, § 7129, was on “reasonable doubt,” a subject properly and fully covered by the oral charge.
Application overruled.